| HOME | HELP | FEEDBACK | SUBSCRIPTIONS | ARCHIVE | SEARCH | TABLE OF CONTENTS |
|
|
|
|||||||
|
|||||||||
Malpractice issues in radiology |
1 Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076, and Rush Medical College, Chicago, IL 60612.
Received June 11, 2002;
accepted after revision June 18, 2002.
Address correspondence to L. Berlin.
The Case
 Top The Case The Lawsuit and Subsequent...The TrialDiscussionSummary and ConclusionsReferences |
|---|
|
Later that day, a surgeon who had been called for consultation by the internist operated on the patient, confirming the presence of an appendiceal abscess. Three days later, follow-up CT was ordered. This scan was interpreted by a second radiologist (radiologist B) as showing partial resolution of the abscess. Radiologist B included in his written report the following statement: "No change in the left lung base density." Chest radiographs obtained on the same day were interpreted by radiologist B as disclosing a "small left pleural effusion, probably secondary to the abdominal process" (Fig. 1B).
|
Two days later the patient was discharged. No further radiologic studies were performed at the hospital, and the radiologists had no further contact with the patient.
The Lawsuit and Subsequent Discovery Proceedings
|
TopThe CaseThe Lawsuit and Subsequent...The TrialDiscussionSummary and ConclusionsReferences |
|---|
After the defendants appropriately notified their insurance company, the company appointed one defense attorney to represent the defendant internist and a second defense attorney to represent the defendant radiologists. Examination of the patient's medical records confirmed the fact that a non—small cell lung carcinoma had been diagnosed in the patient 1 year after she had been hospitalized for the appendiceal abscess, and now, 6 months after diagnosis, the patient had numerous metastases and was close to death. The legal discovery process began with the taking of depositions of the parties.
The attorney for the plaintiff retained as an expert witness a radiologist who specialized in pulmonary disease. In his deposition, the expert asserted that both codefendant radiologists had been negligent by failing to raise the possibility that the lung lesion might be malignant. The plaintiff's attorney also retained an expert oncologist, who testified that, in his opinion, had the carcinoma been diagnosed at the time of the patient's initial admission to the hospital, she would have had an "85% to 90% likelihood of cure." The plaintiff's lawyer had the patient's deposition videotaped because of the likelihood that she would die before the lawsuit came to trial.
In their respective depositions, the two defendant radiologists contended that their conclusions that the lung lesion represented a granuloma were appropriate and within the standard of care. The radiologists' defense attorney also retained as an expert witness a radiologist specializing in pulmonary disease, who asserted in his deposition that the CT interpretations of the defendant radiologists were reasonable and therefore in conformity with radiologic standards.
In his deposition, the defendant internist testified that he had "relied totally" on the radiologists' interpretations. "Once the CT report indicated that the lung abnormality was a granuloma, there was no reason for me to follow up," explained the internist. "If I had been told that the lung lesion was suspicious for cancer, I would certainly have ordered a biopsy and called in a chest surgeon." When asked why he hadn't obtained follow-up chest radiographs to evaluate the patient's left pleural effusion in the weeks or months after the patient's discharge from the hospital, the internist replied that it hadn't been necessary to do so because he had been "led to believe by the radiologists" that "the fluid was due to the patient's abdominal abscess."
Although informal discussion took place among the attorneys and the insurance company about settling the lawsuit, the parties never reached an accord. In the meantime, the patient died of metastatic lung cancer. Then, in a move that surprised the defendant radiologists and their lawyer, the plaintiff's attorney, without giving any reason, voluntarily dismissed the internist from the lawsuit. The case then proceeded to a jury trial in which the only defendants were the two radiologists.
|
TopThe CaseThe Lawsuit and Subsequent...The TrialDiscussionSummary and ConclusionsReferences |
|---|
Q: Doctor, is it true that customarily referring physicians do not themselves read CT scans, but instead rely upon you because you are considered to be the expert in the area?
A: Yes.
Q: And so, when you issue a report that a mass in the left lung is nothing to worry about, you would expect that the doctor reading that report would rely on it and would therefore probably not do anything more to try to figure out if that mass in the lung is cancer?
A: Yes.
Q: And would you say that before you issue a report that a mass in the lung is nothing to worry about, you owe it to the patient to be mighty sure of what you are saying?
A: Yes.
Q: Would you agree that when a CT scan shows a lung mass, the fact that the mass contains calcium does not allow you to conclude that the mass is benign?
A: Yes.
At this point the plaintiff's attorney brought forth a 12 x 14 cm styrofoam model of the mass (Fig. 2) and showed it to defendant radiologist A and the jury.
|
Q: Doctor, it is absolutely recognized, is it not, that you can have a granuloma with nice smooth borders, and then a malignancy can grow around the granuloma and create edges similar to what we see in this model, correct?
A: It can happen, but it is very rare.
Q: Doctor, I didn't ask if it's rare, I asked only if it is recognized that a malignancy can grow around a granuloma. Answer the question, yes or no.
A: Yes.
Q: Doctor, is it not true that there are three ways in which you might report your conclusions concerning a lung mass: benign, which is what you did; indeterminate, which means it has characteristics that might make it malignant, or might not make it malignant, you don't know; and suspicious for malignancy?
A: Yes.
Q: Doctor, when a lung mass shown on a radiology study is indeterminate, is it true that the standard of practice requires that the radiologist communicate to the attending physician that the mass is indeterminate?
A: Yes.
Q: Doctor, would you agree that when issuing a report that a mass is a benign granuloma, it's probably going to cause the physician receiving the report to engage in no further testing, and that if the mass is cancer, it means that the cancer will continue to grow undetected, and that furthermore, if you issue a report that something is a benign granuloma without being awfully sure of it, that report can be a death sentence for the patient?
A: I suppose that's true.
Q: Would you agree that what is very important in assessing the likelihood of whether a mass is malignant or benign is to determine whether the calcification that is present in the lesion is in its center or is off-center?
A: Yes.
Q: Doctor, looking at the model, is the calcification in the center of the lesion or is it off-center? Keep in mind that in your report, you called the calcification central.
A: It's central to me.
Q: Well, Doctor, if someone looking at this thought the calcification was closer to the top than to the bottom, that's not really in the center, correct?
A: Yes.
Q: Doctor, if this calcification is not in the center, then it's off center, and therefore you should not have issued your report in the way you did, correct?
A: If the calcification...
The judge now suddenly interjected.
Judge: Hang on for a second, Doctor. Let's establish a few ground rules here. If you are asked a question that calls for a yes or no answer, just give a yes or no answer. If you think there is something that you want to say that you can't say, your defense lawyer is here for later cross-examination.
Q: Doctor, if judgments are to be made about whether or not to follow up a lung lesion, is it your responsibility to leave judgment making in the hands of the patient and the patient's physician?
A: I was the patient's physician at the time and I used my own judgment.
Q: Well, doctor, everything we do in life involves judgment. When you are driving down the street and you see a red light, you exercise your judgment whether to stop or go through it, I suppose. If you go through a red light and you injure someone, it's not a defense that you went through that red light in the exercise of your judgment, is it?
A: That would be bad judgment, correct.
Q: That would be negligent judgment?
A: Yes.
Q: So just because one is exercising judgment doesn't mean that whatever you do is okay, does it, and thus you can be negligent in the exercise of your judgment, can't you?
A: If your judgment is wrong, that's true.
Q: Doctor, can you see how a reasonably well-qualified radiologist looking at this mass, seeing the position of the calcification, and looking at the borders that are irregular, would report this as indeterminate for malignancy?
A: Different people will report it in different ways, but I suppose perhaps someone could.
Q: Just not you?
A: Correct.
The plaintiff's lawyer then called radiologist B to the witness stand.
Q: Doctor, let's talk about your report of the follow-up scan. Nowhere do you have the word granuloma. Nowhere do you have the word mass. Nowhere do you have the word lesion. Nowhere do you have the word tumor. Nowhere do you record a measurement of this mass. Nowhere do you report the borders of the mass. Nowhere in your report do you talk about whether there is a calcification. Nowhere in your report do you talk about whether if it has a calcification, the calcification is central or eccentric. All those things are true, right?
A: Not in those words. I just said, after comparing the CT scan with the previous one, that there was no change in the lung findings.
Q: Doctor, would you agree that if this mass should have been reported as indeterminate on the first CT, you had the same responsibility to do the same?
A: If it should have been reported as indeterminate, yes.
Q: Doctor, you indicated previously in your pre-trial deposition that the mass shows up better on the first CT scan than it did on the second. And so if you are going to make a life-and-death decision for a patient, if you are trying to make a decision on what the borders look like, what the calcification looks like, and whether the calcification is central or eccentric, it would be a pretty good idea to do that on the study that shows the mass best, wouldn't it?
A: Yes.
Q: Doctor, as a radiologist, you do not make a diagnosis of lung cancer, do you? Pathologists do that, right? What you do is like the screeners at the airport. A suitcase comes through the X-ray machine, something shows up, it might be a gun, it might not be a gun, they don't know, so they pull the bag off the line. That's what a radiologist does. And then someone else takes a look in the bag and sometimes it's a gun and sometimes it isn't. That's kind of what a radiologist does, isn't it?
A: Well, I went to a lot more schooling than the people doing what you are saying, and thus I don't think that it is a good analogy.
Q: Okay. What a radiologist does is alert people that there may be a problem in a lung and then those people go on and they make the tests and they do whatever needs to be done to determine if it truly is a problem, right?
A: Yes.
Q: Doctor, is the calcification in this mass eccentric?
A: No, because I don't believe that what you're calling the lowest portion of the mass on the CT scan and on your model is part of the mass. I believe the lower part of what you're calling the mass is actually a superimposed scar.
Q: Now, Doctor, you were in this courtroom earlier when your partner testified that the area that I'm calling the lowest portion of the mass is in his opinion within the confines of the entire mass. Did you hear him say that, and, if you did, if we accept your partner's description of this all being mass, isn't the calcification a little bit eccentric?
A: I disagree with that and I disagree with my partner.
Q: Well, Doctor, since you disagree with your partner, it would have been nice to discuss that disagreement when the patient was still in the hospital and could have benefited from it, wouldn't it?
A: Yes.
The plaintiff's attorney continued questioning defendant radiologist B, posing many questions in a form that had to be answered yes or no. However, the defendant several times replied that he could not answer the questions with a simple yes or no. At this point, the judge excused the jury from the room and then turned to defendant radiologist B:
Judge: Look, Doctor, I don't know if you think you are being cute or not, but I want you to answer the questions that the plaintiff's lawyer asks you. I don't want you to rephrase his questions and I don't want you to try to answer some other question. Let me tell you something, the last doctor that I saw who was as evasive as you and your partner are in a wrongful death malpractice case got a $7.6 million judgment against him. If you think you can cover that, go ahead and be evasive.
On the next day, the plaintiff's attorney called his expert radiology witness to the stand. On both direct examination by the plaintiff's attorney and cross-examination by the defense attorney, the plaintiff's radiology expert held firm to his opinion that because the lung mass had irregular margins and contained an eccentrically positioned calcification, it was a deviation from the standard of radiologic care for the two defendant radiologists to characterize the lesion as a granuloma. After this testimony, the plaintiff's attorney called his oncology expert to the stand. The oncologist testified that at the time the initial CT scans were obtained, the lung carcinoma was more likely than not in a stage in which the patient had an 85-90% likelihood of cure.
On cross-examination by the defense attorney, the oncologist acknowledged that it was possible that the pleural effusion noted on the patient's chest radiographs that had been obtained during her initial hospitalization was a result of the malignancy. If so, conceded the oncologist, this could mean that the carcinoma was already incurable and, therefore, the 1-year delay in the establishment of the diagnosis of lung carcinoma did not materially affect the patient's survival.
After his testimony and that of the surviving children of the patient, the plaintiff's attorney rested his case.
The defense attorney then called to the witness stand defendant radiologist A. In responding to a number of questions posed by his defense attorney, the defendant radiologist explained why he considered the abnormal lung density seen on the patient's CT scan to be a granuloma, adding that he believed his interpretation, although later proven to be incorrect, was still within the standard of radiologic care. The plaintiff's attorney then rose to cross-examine the radiologist.
Q: Doctor, even though the occurrence may be rare, the patient had a right to expect that the radiologist reading her study would know that a lung cancer can engulf a granuloma and create an eccentric calcification, correct?
A: Yes.
Q: Doctor, when you are looking at this mass, and you've got a part of the border that looks benign and a part of the border that looks suspicious, and a calcification that may be central but maybe it's eccentric, then it wouldn't be unreasonable, would it, to allow the patient and the patient's doctor to decide what steps to take next?
A: That's not unreasonable, no.
Q: But, doctor, when you issue a report that tells them it is a granuloma, that's not going to happen, is it?
A: That's correct.
Q: Doctor, if you really wanted to know what this thing looked like in more detail, you could have made thinner cuts, couldn't you? You shouldn't have to engage in some sort of a mind exercise trying to imagine what it looked like in better detail, should you? If you cared enough, if it mattered to you, you could have found out simply by doing more cuts, right?
A: If I felt it was necessary, yes.
Q: Doctor, when you look at the model I'm holding, the calcification is off-center, perhaps not much off-center, but it really doesn't have to be much off-center does it? From top to bottom, isn't this calcification off-center?
A: The geometric center of that model is right where the calcification is. The calcification is in the middle.
Q: Doctor, you can use any form of measurement you want, centimeters, millimeters, inches; this calcification is closer to one border than it is to the other border, and that ain't the middle, is it?
A: That's your opinion.
Q: Doctor, with regard to the responsibility that you owe a patient, wouldn't you agree that this responsibility requires that an indeterminate mass be recorded as indeterminate, and that if you fail to report it as indeterminate, you are not only doing the patient a great disservice, but you may be sentencing the patient to death because a malignant process will not be diagnosed when it is still in a curable stage?
A: Yes.
Q: And, furthermore, you have the same duty to the patient regardless of whether the CT is a study of the chest or a study of the abdomen that shows the chest. Isn't that true?
A: Yes.
The defense attorney then called defendant radiologist B to testify. In response to questions posed by the defense attorney, defendant radiologist B carefully explained why he thought that the density seen in the patient's lung represented a granuloma. Although he acknowledged that the calcification could be considered eccentric within the mass if the mass on the CT measured 1.8 cm, as radiologist A had testified, radiologist B explained that he believed that the lower 2 mm of the lesion represented an overlying scar rather than the mass itself. With that in mind, testified radiologist B, he would have characterized the calcification as central. The defense attorney then asked radiologist B why he had not discussed his difference of opinion regarding the size of the lesion with radiologist A before rendering his interpretation. Radiologist B replied that a personal discussion with radiologist A was not necessary because he had had A's report and the initial CT in front of him, and had come to the same conclusion as A, namely, that the lesion was a benign granuloma.
After the defense attorney completed his direct examination, the plaintiff's attorney then approached radiologist B for cross-examination.
Q: Doctor, you've told this jury that the only way you can say that the calcification was in the middle of this mass is by disagreeing with your partner, by saying that the lower 2 mm of what everyone else calls the mass is actually not the mass itself, but rather an overlying scar.
A: That's true.
Q: In that situation, didn't the patient have a right for the two of you to talk and for the two of you to issue a report that was indeterminate? Wasn't that the patient's right, Doctor?
A: I guess.
Q: And isn't that a right that the patient had pursuant to accepted standards of radiologic practice? Don't the accepted standards of medical practice require that two doctors reading a study who are in a disagreement on what that study shows and who are in the same office together and they are dealing with something which is potentially a life and death situation, don't accepted standards of medical practice require in that situation that the two of you talk? Doesn't the accepted standard of practice require that the two of you get together and try to figure out what this is and how to report it?
A: I can't answer that yes or no.
Q: Doctor, a mass in someone else's lung is a big deal, isn't it? Until you determine whether it's malignant or benign, if someone found a mass in your lung, it would be a big deal, wouldn't it, and if so, would it be any less of a big deal in the patient's lung?
A: It would be a big deal.
Q: So you and your partner disagreed on the measurement of this mass. At this point, you knew there was a dispute between you and your associate radiologist. Wouldn't you then agree that the accepted standard of radiologic practice required that the two of you discuss this dispute?
A: No.
Q: No? So, Doctor, in your radiology group, where a patient has two radiology studies done that were read by two different radiologists, and the radiologists disagreed with each other, the standard in your group was not to discuss it, is that what you are saying? Doesn't the standard in your group or in any other radiology group require that where there is a disagreement on the interpretation of a radiology study, it should be discussed?
A: Yes.
Q: And that discussion never happened in this case, did it?
A: That discussion never occurred as far as I remember.
Q: Isn't it true, Doctor, that the first time either one of you learned about your disagreement concerning the size of the lesion was when I questioned the both of you at your pre-trial depositions?
A: Yes.
Q: That's not a great way to practice medicine or radiology, is it?
The plaintiff's attorney concluded his cross-examination without waiting for an answer.
On the following day, the defense attorney called his expert witness radiologist to the stand. During both direct and cross-examination, the witness did not waiver from his belief that the interpretations rendered by both defendant radiologists were reasonable and therefore within radiologic standards. Although the expert radiologist acknowledged that the lesion identified on the CT scans did turn out to be carcinoma, that other reasonably well-qualified radiologists could have called the lesion indeterminate, and that an earlier diagnosis could have improved the patient's prognosis, nevertheless the defense expert refused to concede that either of the defendant radiologists had breached the standard of care in their interpretations.
On the final day of trial, both attorneys presented their closing arguments. The plaintiff's attorney emphasized to the jury that this case dealt with only the interpretation of the two CT scans, nothing more, nothing less. With regard to those interpretations, continued the plaintiff's attorney, the questions put to the jury were only two: whether the calcification was central or eccentric, and whether the margins were suspicious for a malignant lesion. If the jury felt that either the calcification was eccentric or the margins irregular, argued the attorney, then the jury had to conclude that the radiologists should have categorized the mass as "indeterminate" rather than as a benign granuloma. The attorney reiterated his earlier claim that had the lesion been called indeterminate, the patient's attending physician would immediately have obtained a biopsy, which in turn would have almost certainly effected a cure of the patient's lung cancer. Instead, asserted the attorney, the patient was given a death sentence because of the negligent actions of the defendant radiologists.
The plaintiff's attorney then used the analogy of a warning light appearing on the dashboard of a car. "When the warning light appears on your dashboard," said the attorney, "it is in your best interest to go to the mechanic to have that abnormality checked out. The defendant radiologists," charged the attorney, "had a warning light on the dashboard that they ignored." The plaintiff's attorney concluded his argument by asking the jury to award $8.5 million in damages.
In his closing argument, the defense attorney discussed how radiologists arrive at radiologic interpretations, pointing out that merely because a radiologist's interpretation may be wrong does not necessarily mean that the standard of care was violated. He again emphasized that the standard of radiologic care required only that the radiologist's interpretations be "reasonable," not necessarily "totally correct."
After receiving instructions from the judge, the jury began its deliberation. Four hours later, the jury reached a verdict. It found that both defendant radiologists had been negligent and awarded the family of the deceased patient $800,000 in compensatory damages [1].
|
TopThe CaseThe Lawsuit and Subsequent...The TrialDiscussionSummary and ConclusionsReferences |
|---|
In his book Damages that chronicles an actual malpractice lawsuit that had proceeded to trial, author Barry Werth [2] wrote:
Trials, as any courtroom lawyer knows, are only nominally about law and truth. More often, they're about the personalities and charisma of the lawyers themselves. Trials are a form of theater, and the ability to weave dramatic stories and portray them grippingly in court...to "give the jury a tune it can whistle after the show lets out."
Perhaps the plaintiff's attorney's success in this lawsuit was due to the fact that he gave the jury "a tune it can whistle." By choosing to dismiss the internist from the lawsuit and then completely disregarding the patient's pleural effusion and the internist's failure to follow up on this finding, the plaintiff's attorney reduced the case to the simplest issue possible: whether the two defendant radiologists were negligent by concluding that the lesion in the patient's lung base was a granuloma. More specifically, the plaintiff's attorney built the major part of his case on the fact that the radiologists had said that the calcification in the lesion was central rather than eccentrically located. This was a point that, in front of the jury, the attorney repeated over and over again with both defendant radiologists as well as the expert witnesses. Indeed, this may well have provided the tune that the jury whistled while it was deliberating. Although he never expressed it in these words, the plaintiff's attorney was effectively creating a tune, or mantra, that may have gone something like, "If the calcification was central, the radiologists are not liable; but if `eccentric' is what they should have meant, then the radiologists are negligent."
The plaintiff's attorney also created a secondary issue. Focusing on the fact that the two defendant radiologists had disagreed about whether the lesion measured 1.8 or 1.6 cm in size, the plaintiff's attorney formulated the concept that the defendant radiologists had violated the standard of radiologic care by not discussing between themselves their disagreement, now termed a "dispute," before rendering their radiographic interpretations. We shall examine these strategies in greater detail, but first let us briefly discuss radiographic errors.
Radiographic Errors
The error with which the two codefendant radiologists were charged dealt
with their assessment of the nature of the patient's lung lesion. Radiologic
errors are generally characterized as being either perceptual, when a
radiographic abnormality is not seen by the radiologist, or cognitive, when an
abnormality is seen but its nature is misinterpreted. The perceptual variety
accounts for approximately 80% of all radiologic errors
[3]. According to one
researcher, half the remaining cognitive errors are due to faulty reasoning, a
phenomenon common among radiologists
[4]. Both defendant
radiologists denied committing an error, contending that they used their best
judgment in determining that the lesion identified on the CT scan was a benign
granuloma. Although the plaintiff's lawyer in this case likened radiologic
judgmental errors to an automobile driver's judgment regarding whether to run
a red light, it is clear that radiologic judgments, and how these judgments
relate to professional negligence, are far more complex issues. The
relationship between judgmental errors and negligence was addressed 98 years
ago by a New York appeals court: "A doctor is not liable for a mere
error in judgment providing he does what he thinks is best after a careful
examination" [5].
In 1975, the Minnesota Supreme Court observed [6]:
Negligence cannot be found when the facts show no more than an error in diagnosis.... A physician is not responsible for the consequences of an honest mistake or error in judgment in his diagnosis.
Twenty-two years ago an Illinois appeals court characterized the relationship in similar terms [7]:
If a doctor has given the plaintiff the benefit of his best judgment, assuming that judgment to be equal to that ordinarily used by a reasonably well-qualified doctor in similar cases, he is not liable for negligence, even if that judgment is erroneous.... [Although] other physicians may have handled the case differently, if a reasonably well-qualified doctor might have proceeded in the same manner as the defendant, [the doctor is not negligent]."
If an error was committed in this case, it was committed by two different radiologists. Errors resulting from the influence that one radiologist exerts on another have been termed "alliterative" errors [8]. In other words, if one radiologist attaches the wrong significance to an abnormality that is perceived on a radiologic study, the chance that a subsequent radiologist will repeat the same error is increased. Marcus Smith [4] has theorized that alliterative errors occur because radiologists who read the reports of previous examinations when looking at newly obtained radiologic studies have a tendency to agree rather than disagree with their peers and are therefore more apt to adopt the same opinion as that rendered previously by a colleague.
Standards of Care
Author Barry Werth [2] has
defined the standard of medical care as follows:
A doctor could err, kill patients, and be dead wrong time and again but was not legally at fault if he or she has met the criteria of the profession. To escape blame, doctors and hospitals didn't need to be brilliant, just average and current. Unlike the law, the standard of care wasn't fixed and immutable, but a rough amalgam of what most doctors were doing at the time, what medical schools were teaching, what textbooks said, and what had been reported in medical journals.
Werth continued [2]:
[The plaintiff's attorney] had become skilled in cases where the standard of care was in flux or a new standard seemed to obviate an older one. He encouraged juries to set their own standards of care, to decide, after hearing all the evidence, what reasonable doctors should have done under the circumstances.
The plaintiff's lawyer in this case seems to have followed Werth's strategies. As was suggested earlier, the plaintiff's attorney created in the minds of the jurors and perhaps even in the minds of the defendant radiologists themselves a new standard of care that had not been previously enunciated by the judiciary or any established body of radiologists: the duty of radiologists to discuss with each other any "dispute" that arises between them when interpreting similar radiologic studies obtained on the same patient on different days. The evidence in the case did confirm that two different CT studies obtained on the patient had been interpreted differently by two radiologists without any verbal discussion between them. No disagreements occurred in their conclusions that the lesion represented a granuloma, but it was true that only during the litigation process did the disagreement arise about whether the lesion measured 1.8 or 1.6 cm. Amid this testimony, the plaintiff's attorney was successful in eliciting the acknowledgment from both defendant radiologists that a standard to resolve disputes did exist, and that they had violated this standard.
The Model of the Lesion as Evidence
Before the trial began, the defense attorney objected to the judge's
permitting the plaintiff's attorney to unilaterally use an artificially
constructed large model to depict the lesion as it had presumably appeared on
the CT. The judge rejected this objection and allowed the model to be used
throughout the trial. Such models and exhibits have often been considered by
the courts as demonstrative evidence and are usually allowed because they are
viewed by the judiciary as helpful in explaining to the jury complex medical
issues [9].
Yes or No Questions
When examining and cross-examining the defendant radiologists, the
plaintiff's lawyer formulated most questions so that they had to be answered
either yes or no. On many occasions the defendants found it difficult to
answer in this manner, but, as has been seen, the judge admonished the
defendants that the "ground rules" of the court were such that the
defendants were required to answer the questions as posed. Perhaps the
plaintiff's lawyer was adhering to another observation made by author Werth
[2]:
Lawyers...don't really want the truth; they just want to bend the truth to their party's interest. They were conspirators against the truth...asking narrow, partial, indirect questions from which they hoped certain assumptions would be inferred, then objected when the other side made the least effort to inquire further. They never hear what you want to say.
Scar Carcinoma and Calcification
The presumption in this case is that a carcinoma developed within a healed
granuloma. It is well known that lung malignancies can arise in preexisting
scars [10]. According to some
researchers, these carcinomas develop because increased metabolic activity in
areas of the scarring causes a mutation in the cancer-suppressing gene that
leads to production and proliferation of cells with abnormal tumorigenic DNA
[11].
The plaintiff's attorney's strategy during his questioning of the defendant radiologists and expert radiologists of continuously hammering away at the point about whether the calcification within the lesion was central or eccentric was well-founded. Although it is true that a calcification within a pulmonary nodule or mass, even if located eccentrically, was considered overwhelming evidence of a benign lesion until the 1970s [10], later researchers concluded that only those lesions in which the calcification was located centrally should be considered benign [12]. A recent review of solitary pulmonary nodules by Leef and Klein [13] emphasizes the current thinking that an eccentric calcification may indeed represent a calcified granuloma engulfed by a malignancy and therefore should not be taken as evidence of benignity. Therefore, although radiologists during the course of a busy day and in the midst of interpreting a number of chest CT scans may occasionally be lulled into complacency regarding the distinctions among the terms "central," "off-center," and "eccentric," radiologists should keep in mind that in a court of law and under the symbolic magnifying glass held by a plaintiff's attorney, the fine distinctions among these terms can make a difference as to whether a jury finds for or against a radiologist in a malpractice trial.
Hindsight Bias
Another factor that apparently played a part in facilitating the
plaintiff's attorney's ability to convince the jury that the defendant
radiologists had been negligent in their interpretation of the patient's CT
scans was the phenomenon known as hindsight bias. Defined as the tendency for
people with knowledge of the actual outcome of an event to believe falsely
that they would have predicted the outcome
[14], hindsight bias
frequently exerts influence on juries in their deliberations regarding medical
malpractice. A University of Pennsylvania research study found that a jury's
determination of negligence is greatly influenced by whether the patient has
sustained harm [15]; if he or
she has, hindsight bias will cause the jury to impose liability on the
defendant. As one legal commentator has observed
[16]:
Although our legal system purports not to hold defendants liable if they have conducted themselves reasonably before an injury occurs, nonetheless hindsight bias does cause some reasonably acting defendants to be subjected unfairly to adverse liability judgments when after-injury evaluation by jurors has taken place.
It Was the Internist's Fault, Not the Radiologists'
Privately the defendant radiologists in this case lamented that if
liability ultimately were to be imposed, the patient's internist should have
borne the greater share of it. The defendant radiologists believed that the
internist violated the standard of medical practice because he failed to
obtain follow-up chest radiography to evaluate the pleural effusion after the
patient's discharge from the hospital. The radiologists were convinced that
the pleural effusion indicated that the patient already had pleural metastases
and privately believed that early follow-up radiographic studies would have
led to a timely diagnosis of lung cancer. If this had occurred, they believed,
no material delay would have occurred in diagnosis of a carcinoma, and thus no
basis would have existed to file a medical malpractice lawsuit. Although no
way exists to test the validity of the radiologists' assumptions, the courts
have been quite clear and consistent in holding that radiologists who breach
the standard of radiologic care will be held liable for their own actions even
though some other intervening or associated actions conducted by other
physicians may also have breached the standard of medical care
[17].
Doing Nothing Versus Doing Something
In the implementation of another strategic decision, the plaintiff's
attorney successfully portrayed the defendant radiologists as "donothing
doctors." As illustrated by the attorney's references to failure of an
airline screener to detect in an "X-ray machine" an object that
could be a gun, or a driver's failure to do something about a warning light
that appears on the dashboard, the plaintiff's attorney effectively led the
jury to develop a feeling of incredulity that the defendant radiologists could
possibly "write off" a potentially malignant lung lesion as a
benign granuloma. Author Werth made a cogent observation about this as well:
"Intervention was the capstone of modern medicine; it was simply
self-defeating to argue that it was better to do nothing than something"
[2].
|
TopThe CaseThe Lawsuit and Subsequent...The TrialDiscussionSummary and ConclusionsReferences |
|---|
|
TopThe CaseThe Lawsuit and Subsequent...The TrialDiscussionSummary and ConclusionsReferences |
|---|
CiteULike 
Complore 
Connotea 
Del.icio.us 
Digg 
Reddit 
Technorati What's this?
This article has been cited by other articles:
|
|
 |
|
  H. Singh, S. Sethi, M. Raber, and L. A. Petersen Errors in Cancer Diagnosis: Current Understanding and Future Directions J. Clin. Oncol., November 1, 2007; 25(31): 5009 - 5018. [Abstract] [Full Text] [PDF]
|
|
|
|
 |
|
 L. Berlin Errors of Omission Am. J. Roentgenol., December 1, 2005; 185(6): 1416 - 1421. [Full Text] [PDF]
|
|
|
|
 |
|
 H. MacMahon, J. H. M. Austin, G. Gamsu, C. J. Herold, J. R. Jett, D. P. Naidich, E. F. Patz Jr, and S. J. Swensen Guidelines for Management of Small Pulmonary Nodules Detected on CT Scans: A Statement from the Fleischner Society Radiology, November 1, 2005; 237(2): 395 - 400. [Abstract] [Full Text] [PDF]
|
|
|
|
|
|
J. M. Gerend and L. Berlin Radiologists on Trial: Whose Fault Is It? Am. J. Roentgenol., July 1, 2003; 181 (1): 282 - 283. [Full Text]
|
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| HOME | HELP | FEEDBACK | SUBSCRIPTIONS | ARCHIVE | SEARCH | TABLE OF CONTENTS |
